An Article in the Series: Faith in the Courts: Global Perspectives on Law and Religion
As one of its goals, the Harvard ILJ strives to publish timely and relevant scholarship that addresses current developments and issues in international, comparative, and foreign law. In that spirit, the ILJ is proud to publish this article series "Faith in the Courts: Global Perspectives on Law and Religion." Through contributions from academics, judges, practitioners, and other scholars, the articles in this series will explore questions related to religious freedom and accommodation between religion and state in a variety of international and comparative law contexts.INTRODUCTION*
Citizenship is yet again central to contestations about the relations between state and religion. Arguments over the public recognition of cultural difference and especially the degree and type of recognition that ought to be afforded to faiths have risen to the forefront of public debate. Increasingly, these renewed state and religion debates revolve around the regulation of women and the family, placing them at the center of larger debates about citizenship and identity.
Consider the following examples: the hijab (the headscarf worn by some Muslim women) has made headlines throughout Europe, engulfing courts and legislatures from Germany to Turkey to France, not to mention the European Court of Human Rights. When the Vatican recently put together a twenty-first century list of seven social sins (drawing on the idea of the list of the seven deadly sins), it placed as the first item on the new list “‘bioethical’ violations, such as birth control.” In the United States, several jurisdictions have established covenant marriages effectively providing a legal route to stem the no-fault divorce revolution. In Egypt, on the other hand, an alliance of feminist organizations, civil court functionaries, and moderate religious authorities, has successfully led to the adoption of more gender-equitable readings of the religious tradition, which has been codified in that country’s Shari’a-informed family law code. In England, a scholarly lecture by none other than the Archbishop of Canterbury (the head of the Church of England/Anglican Church), in which the Archbishop contemplated the option of allowing non-Christian tribunals the ability to determine certain aspects of family law disputes, has received zealous criticism from across the political spectrum. This pattern of response echoed a similarly acrimonious controversy in Canada that broke out following a community-based proposal to establish a private “Islamic Court of Justice” (or darul-qada) to resolve family law disputes among consenting adults according to faith-based principles. These potentially far-reaching alterations to the legal system revolve ever more around the regulation of women and the family, placing them at the center of larger debates about citizenship and identity. These challenges cannot be fully captured by our existing legal categories; they require a new vocabulary and a fresh approach. I begin to sketch the contours of such an approach by asking what is owed to those women whose legal dilemmas (at least in the family law arena) arise from the fact that their lives have already been affected by the interplay between overlapping systems of identification, authority, and belief: in this case, religious and secular law.
While I object to the idea of conferring unchecked authority on any kind of tribunal, this does not lead me to conclude that the best response to pressing challenges raised by the reemergence of faith-based challenges in multicultural societies lies simply in restoring a strict separation of “church and state” model. This standard response is unsatisfactory, in part because of its willful blindness to the intersection of the various affiliations apparent in female group members’ lives – to their state, community, religion, family, and so on. We can surely do better in this day and age. In the following pages I offer an alternative to the conventional view that a clear line can (and should) be drawn between public and private, official and unofficial, secular and religious, or positive law and traditional practice. Instead, I explore the idea of permitting a degree of regulated interaction between religious and secular sources of law, so long as the baseline of citizenship-guaranteed rights remains firmly in place. Counter-intuitively, I argue that the prospect of regulated interaction (rather than mere adherence to strict separation) may contribute to the improvement of the protection of women’s equality and dignity under both systems, affording them the opportunity to express their commitment to both. In this richer conception of citizenship, individuals and families are afforded options to express and redefine both their citizenship and their group membership rather than being forced to sacrifice one for the sake of the other.
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